According to the provisions of the Law on the Public Prosecutor's Office[1], the National Prosecutor, who is also the first deputy of the General Prosecutor, is appointed from among the prosecutors of the National Prosecutor's Office by the Prime Minister at the request of the General Prosecutor after obtaining the opinion of the President of the Republic of Poland. On the other hand, the National Prosecutor may be dismissed by the Prime Minister at the request of the General Prosecutor after obtaining the written consent of the President. This mechanism of dismissing and appointing the National Prosecutor ensures that he is apolitical and independent from the Minister of Justice, who is a politician and is a representative of the current parliamentary majority.
Since taking power in Poland, i.e. from December 13, 2023, the current government has tried to take over the office of the National Prosecutor and thus gain control over Polish prosecutors.
From March 18, 2022, Dariusz Barski is the National Prosecutor, appointed to this function simultaneously with his reinstatement from retirement pursuant to Art. 47 § 1-2 of the Act of 28 January 2016[2] on an active prosecutor of the National Prosecutor's Office.
On January 12, 2024, General Prosecutor Adam Bodnar informed National Prosecutor Dariusz Barski that he was removing him from his duties due to the ineffectiveness of restoring him to active service from retirement in 2022, therefore, in Adam Bodnar's opinion, he could not perform the functions of the National Prosecutor. At the same time, at the request of General Prosecutor Adam Bodnar, by decision of the Prime Minister Donald Tusk, prosecutor Jacek Bilewicz was appointed as the performing duties (acting) first deputy of the General Prosecutor and National Prosecutor.
In response to this action, the National Prosecutor's Office issued statements in which it opposed entrusting the duties of the National Prosecutor to Jacek Bilewicz, and some politicians and the legal community, including the Lawyers for Poland and Judges of the Republic of Poland associations, also disagreed with this decision.
Despite this, Jacek Bilewicz, as the "acting National Prosecutor", together with General Prosecutor Adam Bodnar, started a personnel revolution in the prosecutor's office, replacing prosecutors managing the organizational units of the prosecutor's office and appointing new prosecutors to the National Prosecutor's Office. In this way, prosecutor Dariusz Korneluk was appointed to it.
On March 14, 2024, the Prime Minister appointed prosecutor Dariusz Korneluk to the position of National Prosecutor despite the lack of the President's opinion required by law.
In Poland, the valid rule is the principle of legalism, resulting from Art. 7 of the Constitution. According to this provision, public authorities act on the basis and within the limits of the law. “The purpose of the principle of legalism is to counteract the discretion and arbitrariness of the actions of state authorities and to control this action based on the criterion of compliance with applicable law. Actions of authorities without a legal basis and outside the limits of the law or in violation of these limits are always illegal and may give rise to constitutional and criminal liability of the persons undertaking these actions, as well as the state's liability for damages"[3]. Each action taken by a public authority should be based on statutory authorization:
1. to take action on a given matter,
2. to deal with the case in a given form,
3. to give the decision a specific legal form[4].
Therefore, the Prime Minister could not appoint either Jacek Bilewicz to the position of "acting National Prosecutor" or Dariusz Korneluk to the position of the National Prosecutor because:
1. the office of the National Prosecutor was not vacant,
2. in the Polish legal system, there is no such body as an "acting National Prosecutor", so the Prime Minister does not have the authority to create this body.
As mentioned above, the dismissal of the National Prosecutor requires a decision of the Prime Minister issued at the request of the General Prosecutor after obtaining the written consent of the President. It should also be noted that the laws governing the system of the public prosecutor's office do not provide for such an office as a person 'acting as a National Prosecutor'. The commencement of the procedure for filling the position of the General Prosecutor would be permissible only if Dariusz Barski was dismissed from this position. The dismissal did not take place because the Prime Minister did not issue a decision on the matter, which could only take place at the request of the General Prosecutor and after obtaining the written consent of the President.
The mere handing over of a letter containing information about a change in the interpretation of the applicable regulations by the General Prosecutor does not have a legal effect on the events that have already had a creative effect. Even if it were theoretically assumed that prosecutor Dariusz Barski could not be effectively reinstated from retirement to active service, such a thesis does not result in his automatic dismissal from the office of the National Prosecutor. At most, it can be a prerequisite for initiating the procedure for dismissing the National Prosecutor. Such a dismissal may take place only in a legal manner, i.e. in accordance with the procedure specified in the Act – the Prime Minister may do so only at the request of the General Prosecutor and after obtaining the written consent of the President.
Thus, it should be concluded that, from the point of view of the law, prosecutor Dariusz Barski was not removed from the office of the National Prosecutor. Removing him by means of a fait accompli, including the forcible occupation of his office and removing him from the possibility of managing the prosecutor's office with the use of IT tools, remains an unlawful action that has no effect in the area of legal events. Also, the decision to appoint Jacek Bilewicz to the position of "acting National Prosecutor" on 12 January 2024, as well as the decision to appoint Dariusz Korneluk to the position of National Prosecutor on 14 March 2024, should consequently be regarded as unlawful decisions without legal effects.
The indication as a basis for the statement that the official National Prosecutor is not a National Prosecutor because he has not been effectively reinstated from retirement to active service is journalistic and not legal in nature. The General Prosecutor stated that the act on the basis of which Dariusz Barski was reinstated to active service (see endnote 2) was an episodic act which ceased to be in force 60 days after its entry into force. Therefore, it would be impossible to restore the prosecutor from retirement to active service after May 2, 2016[5]. The problem is that neither this act nor any other, contrary to the views of the General Prosecutor, contained such a time limit. There is no logically justified legal reasoning that determines such a time limit for the validity of the Act. The basic principle of interpreting legal texts is that what is clear is not subject to interpretation (clara non sunt interpretanda). Since the provision enabling a retired prosecutor to return to active service has not been repealed in an appropriate manner, nor does it contain any deadline by which such an application may be submitted, and there is no norm in the legal system limiting the duration of this provision, it is not legal to understood as an episodic norm, i.e. one whose validity is limited in time. Thus, the entire operation and the actions of the General Prosecutor and the Prime Minister were only apparently based on the applicable law. In fact, they constituted an attempt to "eliminate the political inconsistency of the General Prosecutor appointed as a result of the parliamentary elections and the management of the prosecutor's office shaped by the previous parliamentary majority"[6].
What might be the consequences of such ostentatious violation of the law and the forcible takeover by the executive of offices that should be independent of it? In abstracto, these acts violate the principle of reliability and efficiency of state organs and the principle of trust in the state, including citizens' trust that the public official they are dealing with is actually a prosecutor, as well as the trust of those prosecutors who returned from retirement to active service, guided by the clear content of the act, as well as the principle of the legislator's rationality, specificity and legal certainty[7]. In concreto, questioning the appointments of the most important prosecutors of the Republic of Poland and, on the other hand, making a number of appointments that raise doubts as to their effectiveness will cause chaos in the justice system, undermining the validity of prosecutors' decisions, what will deprive individuals of a real and effective right to a court.
To illustrate these consequences, it is enough to mention that the competences of specific prosecutors to act as public prosecutors are already being questioned in court proceedings.
It is a kind of paradox that if we assume that Dariusz Barski was and still is the National Prosecutor, the decisions, including personnel decisions, made by Jacek Bilewicz and Dariusz Korneluk have no force. On the other hand, if Dariusz Barski was never the National Prosecutor, he did not effectively perform any actions during his term of office, including decisions regarding the application of operational control and personnel decisions, including the application (submitted on January 12, 2024, a few hours before the General Prosecutor informed Dariusz Barski about his dismissal from his duties) for the appointment of Jacek Bilewicz as prosecutor of the National Prosecutor's Office. In both situations, Jacek Bilewicz never took up such a position and could not manage its work as an "acting National Prosecutor".
[1] art. 14 § 1 of the Act of January 28, 2016, Law on the Public Prosecutor's Office, Journal of Laws 2024.390.
[2] Article 47 of the Act of January 28, 2016. Provisions introducing the Act - Law on the Public Prosecutor's Office, Journal of Laws 2016.178.
§ 1. A public prosecutor who is retired on the date of entry into force of this Act may, at his or her request, return to service in the position last held or an equivalent position. This right does not apply to prosecutors who retired for health reasons. § 2. The decision on the application referred to in § 1 is made by the General Prosecutor.
[3] M. Florczak-Wator [in:] The Constitution of the Republic of Poland. Commentary, ed. II, ed. P. Tuleja, Warsaw 2023, art. 7, LEX.
[4] M. Zubik, W. Sokolewicz [in:] The Constitution of the Republic of Poland. Comment. Volume I, ed. II, ed. L. Garlicki, Warsaw 2016, art. 7, LEX.
[5] Dariusz Barski was reinstated in 2022.
[6] Opinion on changes in the Public Prosecutor's Office for the Sejm of the Republic of Poland prepared by Ryszard Piotrowski, PhD, DSc, of 26 March 2024, BEOS-457/24A.
[7] Ibidem.
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